Yesterday President Obama, Attorney General Eric Holder, as well as Department of Labor Secretary (and former Department of Justice Civil Rights Division head) Tom Perez met with key community leaders and stakeholders, including Reverend Al Sharpton, to discuss the administration's approach to protecting the rights of voters in the wake of the Supreme Court's decision in Shelby County (Al.) v. [U.S. Attorney General] Holder. The decision struck down key provisions of the Voting Rights Act of 1965, which required certain states in the South to secure federal approval before making changes to their voting procedures. The purpose of these provisions was to ensure equal access to the ballot for all citizens—especially in states where there was a troublesome history with regard to access to voting rights for people of color.
Opponents of the Voting Rights Act argued that these provisions were no longer needed, as they reflected a time in history that the respective states had moved beyond. The Act itself was drafted with a requirement for periodic renewal and has been renewed without revision four different times (you may recall the less-than-accurate but apocalyptic emails that went around circa 2004-2005 and threatened that the expiration of the Voting Rights Act would lead to Blacks being unable to vote; President George W. Bush signed a 25-year extension of provisions of the Voting Rights Act in 2006. I think the email probably scared him.).
Here are a few important facts to understand the historical context and significance of the Voting Rights Act:
-In 1940, just 15 years prior to the Voting Rights Act being enacted, just 3% of eligible Blacks were registered to vote. Mechanisms like poll taxes and literacy tests ran rampant through the Jim Crow south as vehicles to prevent Blacks from being able to register to vote.
-In 1964, a year before the Voting Rights Act, Congress took a step toward ensuring equal access to the ballot by outlawing poll taxes through the adoption of the 24th Amendment.
-In 1965, over 500 non-violent protesters marching from Selma to Montgomery, AL are attacked by law enforcement while they tried to advocate for voting rights for Blacks. Later that year, President Lyndon B. Johnson signed the Voting Rights Act into law which prohibited election practices that denied the right to vote on account of race.
-Following the enactment of the Voting Rights Act, more than 250,000 new Black voters became registered to vote in 1965 alone, many with the assistance of Federal examiners.
-The first extension of the Act was signed in 1970 by President Richard Nixon, who noted that the Voting Rights Act had opened participation in the political process. The next extension would be signed by President Gerald Ford in 1975.
-Following the Act's first extension, Barbara Jordan and Andrew Young are elected to Congress as the first Black members of Congress from the South since Reconstruction.
-Another extension of the Voting Rights Act is signed by President Ronald Reagan in 1982. At each point that the Act is extended, Congressional oversight committees are required to do studies in the states subject to particular provisions to determine whether the Act remains effective and needed.
-With each extension of the Act, Blacks retained continued access to the polls and had greater influence over elections in the South. An example of this is the boom in Black elected officials in the state of Georgia which ballooned to 495 in 1990. Before the Act was signed, the number of Black elected officials in the state was three (3).
-In 2011, a record number of state legislatures began adopting questionable voting requirements including voter id requirements and cuts to early voting. These are troublesome because in many areas they are not easily obtained and federal inquiries later found that those restrictions in states like South Carolina, Texas, and Florida disproportionately impacted minority voters. The Department of Justice files for injunctions in many of these states and successfully thwarts these efforts, for the time being.
-The lawsuits filed by the Department of Justice ultimately set up the showdown in the Supreme Court in the Shelby v. Holder case. The county argued that the requirements for pre-approval to procedural changes that were mandated under the Act were outdated and that it was not only unconstitutional but no longer needed.
-In June of 2013, the Supreme Court rendered a decision in Shelby siding with the petitioner (Shelby county) which gutted important provisions of the Voting Rights Act.
-The concerns over fall out from the decision have already begun to be realized as states like Texas have wasted no time in the wake of Shelby by beginning to change laws surrounding voting provisions.
Got all of that? Great.
So, what now? The Supreme Court's decision presents a unique challenge to an administration which has pledged to ensure that the country doesn't move backwards on civil rights even amidst a sitting judiciary which leans toward the right on most issues of this nature. While the president's meeting yesterday was closed door, those who have spoken about it said that there were several reassurances given by President Obama, Attorney General Holder, and other administration officials that they are as committed as ever to ensure that voting rights are not curtailed. This will likely mean encouraging voting improprieties to be reported to the Department of Justice, which will undoubtedly be keeping a very close eye out to investigate and prosecute any wrongdoing. There is also discussion of a widespread grass roots campaign across coalitions involving many of the community leaders represented at the meeting to spearhead massive voter registration drives not only for the next presidential election, but immediately before any state and local elections take place.
The best strategy for a long term revival of the Voting Rights Act provisions which were struck down is to have Congress continuously monitor the levels of participation of Black voters in the states that had been previously been under watch. This would include studying the numbers of eligible Black voters who are registered and who ultimately make it to the polls. The studies may involve third party neutral think tanks that are commissioned to provide Congress with reliable data. If the data shows that the absence of the provisions in the Voting Rights Act has spurred a significant decrease in participation from Blacks in the electoral process, it may be a helpful tool for policy-makers and lobbyists to advocate for new legislation from Congress that will again protect the rights of all citizens.
The difficulty here is that the present Congress is overwhelmingly Republican and unlikely to be swayed–even in the face of hard evidence– for the need for any new legislation which could be couched as catering to the Black community. Because of this, the administration will need to engineer even more creative solutions to hold the line until they can successfully move Congress toward new legislation. One approach with potential viability is encouraging high levels of participation in state and local races to help elect local legislators who will enact local state laws to protect its citizens. By attacking the problem in smaller chunks, on the local level, rather than trying to focus immediately on another Federal overhaul, the administration may be able to prevent any major changes until the present make up of Congress looks a little different and data supporting the need for new Federal legislation might prove more persuasive.
While the problem is indeed complex, it is encouraging to see the president and high-ranking officials like the Attorney General as proactive and vocal in voicing their displeasure with the SCOTUS' decision in Shelby. It remains to be seen how drastic the effects of the decision will be, however, there do remain options that, if effective, should help slow the country's return to that march in Selma.
Charles F. Coleman Jr. is a former King's County (Brooklyn, NY) prosecutor and a federal trial attorney specializing in civil rights. Follow him on Twitter: @CFColemanJr